JAMES HINES vs. SUPERIOR COURT.

BART I. ALBANO vs. COMMONWEALTH.

423 Mass. 1005

July 25, 1996

Joseph J. Balliro & Joseph J. Balliro, Jr., for the defendant.

Thomas Reilly, District Attorney, & James R. Richards, Assistant District Attorney, for the Commonwealth.

Scott Harshbarger, Attorney General, & Gail M. McKenna, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Bart I. Albano (defendant) argues that his right under the Fifth Amendment to the Constitution of the United States not to be placed twice in jeopardy would be violated if he were to be tried on an indictment charging possession of heroin with intent to distribute. A judgment has been entered in a civil action (G. L. c. 94C, s. 47 [1994 ed.]) forfeiting money, a cellular telephone, and proceeds from the sale of a motor vehicle that were used, or intended for use in, the unlawful drug distribution with which the defendant is charged criminally. A judge in the Superior Court declined to

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dismiss the indictment. The defendant sought relief pursuant to G. L. c. 211, s. 3 (1994 ed.), and a single justice of this court reported the case to the full court. The defendant's contention is answered unfavorably to him in United States v. Ursery, 64 U.S.L.W. 4565 (June 25, 1996). A judgment shall be entered in the county court dismissing the defendant's petition for relief pursuant to G. L. c. 211, s. 3.

So ordered.